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rejecting a similar claim that, at the time petitioner elected to plead not guilty and proceed to trial, his counsel had inaccurately calculated the applicable Guidelines range and failed to successfully negotiate a disposition, on the ground that the claim was "futile" because the Government never made a plea offer
Summary of this case from Barnes v. United StatesOpinion
12 Civ. 7777 (PKC) 10 Civ. 3333 (PKC) 04 Cr. 336 (PKC)
02-04-2013
ROBERT SPEED, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
:
Petitioner Robert Speed has moved to amend a motion to a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket # 32.) He contends that he was denied the effective assistance of counsel during plea negotiations, which resulted in a decision to proceed to a trial wherein he was found guilty on seven of eight counts. Petitioner also has commenced a separate proceeding (12 Civ. 7777 (PKC)) that also asserts ineffective assistance during the plea bargaining process.
Unless otherwise specified, all citations to the docket refer to the proceedings of 10 Civ. 3333 (PKC).
For the reasons explained, petitioner's contentions are both untimely and without merit. The motion to amend is denied (10 Civ. 3333 (PKC)), and the newly commenced action is dismissed (12 Civ. 7777 (PKC)). BACKGROUND
On October 18, 2005, the government filed an eight-count Superseding Indictment against the petitioner. (S3 04 Cr. 336 (PKC), Docket # 55.) Following a ten-day trial, the jury found petitioner guilty on seven of eight counts, including racketeering, conspiracy to commit racketeering, possessing or brandishing a firearm in furtherance of racketeering, conspiracy to transport and transporting stolen goods across state lines, and selling stolen property. He was found not guilty of charges of conspiring to rob narcotics proceeds. On May 22, 2006, the undersigned sentenced petitioner to a term of imprisonment of 240 months, to be followed by a term of supervised release of five years, and imposed a fine of $20,000, restitution in the amount of $505,342.74, and a mandatory special assessment of $700. (04 Cr. 336 (PKC), Docket #73.)
Petitioner subsequently filed a direct appeal to the United States Court of Appeals for the Second Circuit, which affirmed his conviction in a summary order dated April 7, 2008. United States v. Speed, 272 Fed. Appx. 88 (2d Cir. 2008). His petition for certiorari to the United States Supreme Court was denied on June 29, 2009. Speed v. United States, 129 S. Ct. 1985 (2009).
On April 20, 2010, petitioner Robert Speed filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket # 1.) Petitioner asserted that he received ineffective assistance of counsel in violation of the Sixth Amendment. See generally Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the petition asserted that counsel failed to investigate and introduce alibi evidence or DNA evidence, failed to properly address evidence concerning a specific burglary and failed to raise on appeal purported prosecutorial misconduct. (Docket # 1.)
In a Memorandum and Order filed on March 26, 2012, this Court denied petitioner's motion and declined to issue a certificate of appealability. Speed v. United States, 2012 WL 1003469 (S.D.N.Y. Mar. 26, 2012). The Clerk entered judgment on March 27, 2012. (Docket # 29.) On May 10, 2012, this Court denied petitioner's motion for reconsideration. United States v. Speed, 2012 WL 1655772 (S.D.N.Y. May 10, 2012). On May 21, 2012, the petitioner filed a Notice of Appeal. (Docket # 31.) THE MOTION TO AMEND IS DENIED.
On July 2, 2012, while his appeal was pending, petitioner filed a motion in this Court to amend his section 2255 petition. (Docket # 32.) On October 1, 2012, the Court denied the motion, concluding that his Notice of Appeal divested the Court of jurisdiction over the petition. (Docket # 33.)
On November 5, 2012, the United States Court of Appeals for the Second Circuit issued an Order in response to a letter from Speed that was dated July 19, 2012. (Docket # 34.) In his letter, Speed requested that the Court of Appeals transfer the matter back to this Court for consideration of a proposed new claim for relief. (Docket # 34.) The Court of Appeals granted the request, dismissed Speed's appeal as moot, and stated that it would "transfer the proceedings to the district court to allow that court to consider a new claim that his attorneys provided ineffective assistance of counsel during plea negotiations," (Docket # 34.) This Court directed the government to respond to petitioner's motion to amend. (Docket # 36.)
Petitioner's motion to amend asserts that he received ineffective assistance of counsel during plea negotiations, in violation of the Sixth Amendment's guarantee of the right to counsel. He cites to Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), which applied Strickland's ineffectiveness standard to counsel's conduct during the plea process, specifically as related to the rejection of a plea deal. Petitioner contends that at the time he elected to plead not guilty and proceed to trial, his counsel had inaccurately calculated the applicable guidelines range, and failed to successfully negotiate a disposition. (Docket # 32.)
Because it is untimely, the motion to amend is denied. Section 2255 has a one-year limitations period to file a motion seeking relief. 28 U.S.C. § 2255(f). The limitations period begins to run from "the date on which the judgment of conviction becomes final . . . the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 42 U.S.C. § 2255(f)(1), (3)-(4).
In a supplemental submission dated November 13, 2012, petitioner acknowledges that his proposed amendment is untimely, but argues that it "relates back" to his original section 2255 motion. (Docket # 35.) Rule 15(c) "governs the timeliness of a motion to amend submitted after AEDPA's [one-year] statute of limitations has expired." Ching v. United States, 298 F.3d 174, 181 (2d Cir. 2002). Rule 15(c)(1)(B), Fed. R. Civ. P., provides that an amendment "relates back" to the original pleading when it "asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." The Supreme Court has concluded that "[a]n amended habeas petition . . . does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650 (2005). "If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance." Id. at 662.
As noted, the original petition included ineffective assistance claims based on counsel's purported failure to investigate alibi evidence, failure to properly address evidence concerning a specific burglary and failure to raise prosecutorial misconduct on appeal. See 2012 WL 1003469. In the proposed amendment, petitioner asserts that the two attorneys who separately represented him during his criminal proceedings performed ineffectively because they failed to negotiate a plea agreement on his behalf. (Pet. Reply at 3.) Petitioner asserts that it is "reasonable to assume" that counsel failed to pursue plea negotiations based on "their belief that Speed was an Armed Career Offender . . . and facing a mandatory minimum term of 15 years, and that it would be futile to negotiate because the 3 offense level reduction will not change the mandatory minimum . . . ." (Pet. Reply at 3-4.) Although both the original motion and the proposed amendment assert ineffective assistance, they raise far distinct factual circumstances with no temporal or factual connections. The theories of ineffective assistance do not arise out of the same "conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." Rule 15(c)(1)(B). Because the proposed amendment does not relate back to the original motion, it is untimely.
In addition, while plaintiff does not assert that his proposed amendment is timely by virtue of a right "newly recognized by the Supreme Court," 28 U.S.C. § 2255(f)(3), for the reasons set forth by several appellate courts, this Court concludes that Frye and Lafler applied existing Supreme Court precedent and did not announce a new rule of constitutional law, and instead applied the well established Sixth Amendment right to counsel in a specific factual context. See United States v. Lawton, Slip Copy, 2012 WL 6604576 (10th Cir. 2012); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United States, 688 F.3d 878, 879-80 (7th Cir. 2012); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re Perez, 682 F.3d 930, 932-34 (11th Cir. 2012) (per curiam).
The motion to amend also is denied on grounds of futility. Lafler concluded that, pursuant to Strickland, prejudice may arise when counsel's ineffectiveness leads to the rejection of a plea offer. 132 S. Ct. at 1384. "In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court . . . , that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id. at 1385. Lafler is distinguishable from the present case because petitioner does not contend that the government offered a plea agreement. With no plea offer, it would be baseless and speculative to consider what such an offer might have contained or the length of any subsequent sentence. Id. at 1384. Moreover, counsel had no duty to inform petitioner of any plea offer when no such offer existed. Frye, 132 S. Ct. at 1408-10 (counsel has a duty to inform client of a formal plea offer and prejudice may be shown when client can establish that he would have agreed to plea offer). The proposed amendment would be futile. See, e.g., Ching, 298 F.3d at 180 (citing futility as basis to deny amendment of 2255 motions).
Because it is untimely and futile, the motion to amend is denied. (Docket # 32.) PETITIONER'S RECENTLY FILED ACTION IS MERITLESS.
Separately, in October 2012, Speed initiated a second proceeding seeking relief under section 2255. United States v. Speed, 12 Civ. 7777 (PKC). He contends that he received ineffective assistance of counsel during plea negotiations and was prejudiced as a result. (12 Civ. 7777 (PKC), Docket # 2.) In an Order dated November 7, 2012, this Court transferred the new petition to the Court of Appeals for possible authorization of consideration as a second or successive petition. (12 Civ. 7777 (PKC), Docket # 4.) On January 16, 2013, the Second Circuit transferred the matter back to this Court to determine "whether the proposed § 2255 motion should be treated as a new § 2255 motion or in conjunction with Petitioner's motion to amend the § 2255 motion docketed under 10-cv-3333 (S.D.N.Y.)." (12 Civ. 7777 (PKC), Docket # 5.) On January 28, 2013, petitioner filed a motion that requests an order "re-opening my 2255 application under the above docket number." (12 Civ. 7777 (PKC), Docket # 6.)
The contentions of the newly filed motion parallels the substance of his motion to amend, and asserts that his counsel was ineffective under Lafler. (12 Civ. 7777 (PKC), Docket # 2.) Whether construed in conjunction with the motion to amend or treated as a new section 2255 motion, petitioner's arguments are meritless, for the reasons previously discussed. The reasoning and analysis of Lafler and Frye do not apply because the government offered no plea agreement. Moreover, even if the two decisions were relevant, the motion is untimely because Lafler and Frye do not announce a right that is "newly recognized by the Supreme Court," 28 U.S.C. § 2255(f)(3). See, e.g., Hare, 688 F.3d at 879-80. Petitioner also contends that under 28 U.S.C. § 2255(f)(4), his motion is timely because it is based on newly discovered evidence that could not have been found through the exercise of reasonable diligence. (12 Civ. 7777 (PKC) Docket # 2 at 9-10.) He asserts that on April 28, 2012, he first applied Lafler to the facts of his case. (Id. at 6-7.) The application of Lafler does not amount to discovery of new evidence.
The motion filed in 12 Civ. 7777 (PKC) is without merit. The motion to re-open is terminated. CONCLUSION
Petitioner's motion to amend his motion in 10 Civ. 3333 (PKC) is DENIED.
The motion for filed in 12 Civ. 7777 (PKC) is without merit. The Clerk is directed to terminate petitioner's application of January 28, 2013. (12 Civ. 7777 (PKC), Docket # 6.) The Clerk is directed to enter judgment for the respondent in 12 Civ. 7777 (PKC).
Petitioner has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
February 4, 2013